PANG SIU WING alias PANG WING v. CHUNGSHAN COMMERCIAL ASSOCIATION, HONG KONG

CACV 286/2021, [2024] HKCA 49

On appeal from [2021] HKCFI 1250

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 286 OF 2021

(ON APPEAL FROM HCA NO 820 OF 2013)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 4 May 2021, Lok J handed down his judgment (“Judgment”) in favour of the plaintiff who claimed against the defendant for wrongful expulsion as a member of the defendant and in libel for the notices published by the defendant in newspapers relating to his expulsion. The plaintiff was accused of having contravened Article 7 of the Articles of Association (“AA”)[1] in that he had “wilfully [committed] … an act of gross misconduct likely to be injurious to the Association” by dishonestly stating in his membership registration form (“2^nd Registration Form”) his native place was under “Section 3” in order to gain an advantage in the directors’ election.

2.  The judge held that the expulsion of the plaintiff was wrongful and granted a declaration that the resolution of the board of directors on 29 January 2013 to expel him (“Expulsion Resolution”) was invalid. He also granted general damages in the libel claim in the sum of $400,000.

3.  The defendant appealed against the Judgment on the wrongful expulsion claim and the libel claim.

Background

4.  We gratefully adopt the background matters set out comprehensively in the Judgment and the terms and expressions used by the judge. Where appropriate, they will be supplemented by other relevant matters not in dispute.

(i) The parties, the organisation of the defendant and verification of membership

5.  The defendant is a non-profit making clansman association established in 1911 and incorporated as a company limited by guarantee in 1967. It was formed mainly for promoting the welfare of Chungshan (Zhongshan in pinyin) natives residing in Hong Kong. There are about 1,800 members and for each term (usually of two years) it has no more than 100 elected directors (會董) who would elect 23 executive directors (常務會董) among themselves.

6.  Members of the defendant are classified into “9 Sections” (九區), which were supposed to be geographical sections or demarcations within the county of Chungshan. It was a major point in dispute at the trial how the 9 Sections were delineated and what places or villages inside the Chungshan County fall within each Section. The AA do not define the 9 Sections. The demarcation of the 9 Sections was based on a map (“the Map”) contained in the special publication to commemorate the 64^th anniversary of the defendant in 1975. The 9 Sections were demarcated in the 10^th year of the Republic under the Nationalist Government (ie 1921)[2]. There was different demarcation of districts in Zhongshan[3] after the establishment of the People’s Republic in 1949 and the creation of new towns and villages. According to the defendant’s witness Mr Choi Yuet Shan (蔡越山) (“Mr Choi”), the subsequent demarcation and re-categorisation of the places in Zhongshan by the Mainland Government after 1949 is irrelevant for the purpose of how members are classified into the 9 Sections[4].

7.  The classification of a member in a particular Section is relevant to the election of directors, as Article 38 of the AA provides that the number of persons elected to the board of directors, which shall not be more than 100, shall be apportioned in accordance with the number of members from each Section. A member is only eligible to be elected as director of the Section to which he belongs, and to vote for directors by picking from the membership list of that Section.

8.  The plaintiff is a successful businessman born in Hong Kong and a Chungshan native. He became a member of the defendant since around 1994 until he was expelled on 29 January 2013. He first became a director for the 17^th Term (2002-2007) and the secretary general. The 17^th Term election was aborted due to disputes, which only ended after litigation. The 17^th Term directors were appointed without Sectional election and election only resumed in 2007 for the 18^th Term, in which the plaintiff was not elected. The plaintiff was elected as director for Section 3 of the 19^th Term (2009-2011) and the 20^th Term (2011-2013). He was also an executive director for the 20^th Term. Accordingly, when he was expelled, he lost also his office as director and executive director of the defendant.

9.  When the plaintiff joined the defendant in around 1994, his introducing member was Mr Miu Kai Lum (繆啟霖) (“Mr Miu”). Mr Miu was a member in Section 1. He provided the plaintiff with a membership form (“1^st Registration Form”) and the plaintiff filled in his personal data. In the box for “藉貫” (native place), the plaintiff filled in “觀欄” (Guanlan). At that time, he was not shown any document or map identifying the Sections within the Chungshan County, nor was he even aware of the “9 Sections” classification. The “Section Number: 1” in the 1^st Registration Form was not filled in by the plaintiff. The plaintiff believed that he was classified by Mr Miu or the defendant into the same Section as that of Mr Miu.

10.  In 1999, there was a re-registration of members and a re-election of directors due to complaints of vote-rigging. A re-election committee (“Election Committee”) was formed. The Election Committee conducted a re-registration exercise in 2000 for all members (“2000 Registration Exercise”). Each member was required to fill up a new registration form designed by the Election Committee. Respective committee members were responsible for handling the re-registration of members for a designated Section.

11.  For Section 3, the responsible committee members were Mr Li Chuen Hoi (李銓開) (“Mr CH Li”) and Mr Ho Hung Ji (何洪枝) (“Mr HJ Ho”). They provided the plaintiff with a table with the title “中山縣九區鄉村一覧表” (A broad table of the 9 Sections within the Chungshan County) (“the Table”), which had been adopted by the defendant for the purpose of election of the directors. The plaintiff completed the new form (i.e. the 2^nd Registration Form). In the box for “祖籍” (ancestral origin place), he put down “三區東昇鎮觀欄鄉” (Section 3 Dongsheng Town Guanlan Village). The names “東昇” (Dongsheng) and “觀欄” (Guanlan) did not appear under any Section in the Table, but “坦背” (Tanbei) was classified under Section 3. The plaintiff explained he had completed the 2^nd Registration Form as aforesaid as he understood that Guanlan Village was designated by the Mainland Government as part of Tanbei[5] and Tanbei was subsumed under Dongsheng Town.

12.  The 2000 Registration Exercise was conducted and verified internally by members of the Election Committee. Further, the defendant engaged certified public accountants, Messrs M B Lee & Co (“LMB”), to supervise and audit the entire process. An official list of members of the defendant was published. Pursuant to the new registration under the 2^nd Registration Form, the defendant approved, adopted and verified the membership of the plaintiff and issued to him a new membership card.

13.  There were further election-related disputes in the defendant. In or about 2006, the defendant through Horwath Corporate Advisory Services Ltd conducted a membership verification exercise pursuant to a court order. After a full review of all membership documentations and information, the plaintiff’s membership was again verified without any issue and his name appeared in the finalized membership list published by the defendant.

(ii) The 1^st accusation

14.  At the 8^th meeting of the board of directors of the 19^th Term on 8 June 2010, two executive directors, Mr Lam Kit Sing (林潔聲) (“Mr KS Lam”) and Mr Li Tin Kuen (李天權) (“Mr TK Li”), accused the plaintiff of breaching the AA in switching from Section 1 to Section 3 arbitrarily and unilaterally and questioned his integrity. It was resolved that a motion for suspension of the plaintiff’s directorship would be tabled for discussion at the next meeting of the board.

15.  At the 9^th Meeting of the board of the 19^th Term held on 8 July 2010, the plaintiff gave his explanation about switching from Section 1 in the 1^st Registration Form to Section 3 in the 2^nd Registration Form. Despite his explanation, Mr KS Lam and Mr TK Li moved for a motion to expel the plaintiff as a member to be tabled at the next meeting of the board and then onwards to a members’ meeting. No resolution was passed at this meeting.

16.  Eventually, a motion to suspend the plaintiff’s directorship was tabled at the 10^th board meeting of the 19^th Term held on 26 July 2010. It was recorded in the minutes of that meeting:

(i)  The vice-chairman Mr Ho Shek Leung (何錫樑) (“Mr SL Ho”), who was responsible for Section 3, pointed out that the incident did not involve questionable integrity. Under the Nationalist Government, Tanbei was placed under Section 3[6]. The plaintiff was introduced by Mr Miu to join the defendant and if there was error in placing the plaintiff under Section 1, the error was that of the introducer because the plaintiff did not “classify” himself under Section 1. The plaintiff had been finally verified to be from Tanbei and so he must be from Section 3[7].

(ii)  The treasurer Mr Wong Kit Yin (黃潔賢) (“Mr Wong”) pointed out that the administration of the defendant in 1994 was rather lax. The plaintiff stated his native place as “觀欄” (Guanlan) which was not a widely known place at the time. It was thus not surprising that he was put under Section 1, which was that of the introducer. The introducer had passed away and it was impossible to verify. Then in 2000, the plaintiff repeatedly stated his native place as “觀欄鄉” (Guanlan Village). There was thus no discrepancy and the only difference was in the Section number.

(iii)  Mr Chung Lim Tung (鍾廉同) (“Mr Chung”), the legal advisor of the defendant at the time, stated that the classification of the plaintiff under Section 3 was a collective decision of the Election Committee. The plaintiff should not be held responsible and he did not “arbitrarily or unilaterally” make the change.

(iv)  The plaintiff also reiterated that he did not put down “Section 1” in the 1^st Registration Form. The Section number was written by the defendant. Furthermore, there was actual verification by the defendant and LMB in the 2000 Registration Exercise and his classification under “Section 3” was approved by the defendant. Mr KS Lam and Mr TK Li should have clear knowledge as they were members of the then Election Committee.

(v)  After discussions, the chairman declared, acting on the legal advice of Mr Chung, that no resolution was needed and that the executive directors could later discuss, if they so wished, whether or not full investigation should be undertaken.

17.  The plaintiff issued a letter to the defendant on 9 August 2010 to set out his explanation. Thereafter, no further investigation was undertaken by the defendant until the 2^nd accusation was made in late 2012 and the plaintiff continued to be recognized as a member and served as a director until he was expelled in 2013.

(iii) The 2^nd accusation

18.  In 2012, the plaintiff was interviewed by Zhongshan Daily (中山日報), which was a publication in the Mainland. The interview was published in an article (“the Mainland Article”) which contained the following:

“彭少榮又名彭榮，祖籍中山沙溪鎮聖獅村。1952年，彭少榮的父親彭杰移居香港謀生。…果然，就在1990年的一天，父親帶着幾個陌生人來到彭少榮的工廠，他們是當時的中山坦背鎮觀欄村村委會負責人 … 他父親是在觀欄村長大後才移居香港, 父親與觀欄村有較深厚的感情，他也曾于1964年及1974年兩次回過觀欄村的伯父家探親 … 1992年末1993年初, 彭少榮與…等鄉親創立香港中山坦背同鄉會 … 2005年，香港中山坦背同鄉會在東昇鎮建起辦公大樓，並把物業租金的收益回饋給家鄉的慈善事業。 … 彭少榮說，他因1990年捐助觀欄小學而認識家鄉 …”

19.  It would appear from the above that notwithstanding the “祖籍” (ancestral origin place) of the plaintiff was stated as “沙溪鎮聖獅村” (Shaxi Town Shengshi Village), the plaintiff maintained that his native place (家鄉) was Guanlan Village Tanbei Town. According to the Mainland Article, Guanlan Village was where his father grew up until moving to Hong Kong in 1952, he had visited his paternal uncle in that village in 1964 and 1974, he donated money to the Guanlan primary school in 1990, he set up the Hong Kong Zhongshan Tanbei Clansmen Association with fellow clansmen in 1992/1993, and this association built an office building in Dongsheng Town in 2005 and used the rentals received for the charity works of the native place.

20.  It is not in dispute that Shengshi Village was part of Shaxi and Shaxi was put under Section 2 for classifying the members of the defendant.

21.  In 2012, Mr KS Lam had become the defendant’s chairman of the 20^th Term. On 18 December 2012, in a notice for the 17^th board meeting of the 20^th Term, it was stated that the defendant had received a complaint letter accusing the plaintiff of “inappropriate declaration of Section; seriously questionable integrity; breach of Article 7”. The notice called for the board to discuss whether the plaintiff should be dealt with under Article 7.

22.  At the 17^th meeting of the Board of the 20^th Term held on 27 December 2012:

(i)  Mr KS Lam referred to the plaintiff declaring to be under Section 1 on the 1^st Registration Form, the plaintiff stating to be under “Section 3” in the 2^nd Registration Form, and the plaintiff’s interview by Zhongshan Daily. Mr KS Lam alleged that the plaintiff had claimed in the interview that his village place was Shengshi (“鄉籍是聖獅”). Mr KS Lam stated that the classification which Section the plaintiff should come under was obviously problematic and it was necessary for him to explain.

(ii)  The plaintiff explained that for “鄉籍” (village place), he had consistently stated “觀欄村” (Guanlan Village) in the registration forms and had never changed his “籍貫” (native place). The plaintiff was told that he should have originated from the Pangs’ clan (彭氏) of Shaxi Shengshi (沙溪聖獅) and that in the past, Guanlan fell within the boundary of Shaxi Shengshi but when the Government established cities and towns, Guanlan was carved out and placed under Tanbei[8]. Guanlan thus became part of Tanbei which was under Section 3. As for the press interview, the plaintiff had said his “祖籍” (ancestral origin) was “沙溪聖獅” (Shaxi Shengshi) but he also clearly stated that his father grew up in “觀欄” (Guanlan). He also referred to the fact that this accusation had been satisfactorily refuted at the board meeting on 26 July 2010 and relied on the views expressed therein by Mr Chung and Mr SL Ho.

(iii)  Mr KS Lam did not accept the plaintiff’s explanation and alleged that the information in the registration forms was filled in by the plaintiff himself. The plaintiff reiterated he did not put down “Section 1” in the 1^st Registration Form, and if it was erroneous, that was the fault of the defendant.

(iv)  One of the directors suggested that the defendant should first obtain legal advice. The plaintiff also asked the defendant to seek legal advice from its legal advisor Mr Simon C Y Siu (蕭澤宇) who was present. Apparently, no legal advice was provided at the meeting.

(v)  The motion was put to a vote and was resolved by a majority (40 votes in favour, 6 opposed, 22 abstained) that the complaint against the plaintiff should be dealt with in accordance with Article 7 and followed up in the next board meeting.

23.  On 29 January 2013, the 18^th meeting of the board was held. The plaintiff reiterated his explanations as stated above and the views expressed by Mr Chung, Mr SL Ho and Mr Wong at the board meeting on 26 July 2010. He further stated that he had checked the Table again and that both “聖獅” (Shengshi) and “觀欄” (Guanlan) were not mentioned in the Table but “坦背” (Tanbei) was mentioned and was classified under Section 3. The plaintiff stressed that all along, he put down Guanlan as his native place. He referred to a booklet issued in 1996 by the Zhongshan City Overseas Chinese Bureau (“中山市僑務局”) in support and stated that he had used the address “坦背鎮觀欄” (Tanbei Town Guanlan) in correspondence. He queried how his alleged conduct was injurious to the defendant.

24.  Mr KS Lam repeated the accusations. He stated that both the 1^st and 2^nd Registration Forms contained the plaintiff’s signatures. He said that the plaintiff’s statement to Zhongshan Daily that he was from “聖獅” (Shengshi) was inconsistent with the information the plaintiff provided in the 1^st and 2^nd Registration Forms. The plaintiff’s conduct touched upon “integrity” and must be dealt with seriously. He concluded that the plaintiff had breached the AA and moved for a resolution to expel the plaintiff. A vote was then taken and the Expulsion Resolution was passed by a majority (44 votes in favour, 7 opposed and 18 abstained).

(iv) Expulsion of the plaintiff and publication of the notices in newspapers

25.  On 6 February 2013, the plaintiff received a formal notice from the defendant notifying him of his expulsion as a member with immediate effect (“Expulsion Notice”). The Expulsion Notice stated that the plaintiff was in breach of Article 7 and his integrity was in serious question.

26.  By a letter dated 6 February 2013 from the plaintiff’s then solicitors to the defendant, the plaintiff objected to his expulsion which he considered invalid. The plaintiff also pointed out that the Expulsion Notice contained statements defamatory of and concerning him and expressly reserved his rights. He demanded retraction of the Expulsion Notice and reinstatement of his membership.

27.  Notices of the plaintiff’s expulsion were then published by the defendant in Wen Wei Po, Ta Kung Pao and Hong Kong Commercial Daily respectively on three consecutive days on 11, 12 and 13 March 2013, which contained the words complained of by the plaintiff as defamatory of him (“the Words”):

(i)  “彭少榮先生違反本會會章”;

(Mr Pang Siu Wing was in breach of the AA of the Association)

(ii)  “關於本會收到會員來信投訴質疑彭少榮申報所屬會員區份不符，誠信大有問題, 違反本會章程第七條…”; and

(The Association had received complaint(s) by letter(s) from member(s) querying that Mr Pang Siu Wing did not belong to the Section he declared, there was a big issue with his integrity and [he] was in breach of Article 7 of the AA …. … … )

(iii)  “跟據上述會董會決議之表決結果，本會現對開除彭少榮先生會籍的決定予以公佈，其會籍資格及有關之一切福利及權利自2013 年1月29日起終止，…”.

(In accordance with the voted resolution made in the meeting of directors, the Association now announces the expulsion of the membership of Mr Pang Siu Wing, and his membership together with all the rights and welfare associated with the same was terminated with effect from 29 January 2013 … … … )

The holdings in the Judgment

28.  The plaintiff and Mr Choi were the only witnesses at the trial.

29.  For the claim of wrongful expulsion, the main issue is whether the plaintiff had wilfully committed an act of gross misconduct likely to be injurious to the defendant. It is the defendant’s contention that this was made out in that the plaintiff was dishonest in filling out the 2^nd Registration Form in 2000 stating himself to be under Section 3 in order to gain an advantage in the directors’ election. This serious accusation comprised the following ingredients[9]:

(i)  The plaintiff deliberately changed from “籍貫: 第一區觀欄鄉” (native place: Section 1 Guanlan Village) in the 1^st Registration Form to “祖籍: 中山三區東昇鎮觀欄鄉” (ancestral origin place: Zhongshan Section 3 Dongsheng Town Guanlan Village) in the 2^nd Registration Form as he desired to leave Section 1 to join Section 3 to gain electoral advantages.

(ii)  The plaintiff knew his “籍貫” (native place) or “祖籍” (ancestral origin place) was “沙溪” (Shaxi) which fell within Section 2.

(iii)  The plaintiff knew “觀欄” (Guanlan) was within Section 2.

(iv)  The plaintiff filled in “東昇鎮” (Dongsheng Town) as part of his “祖籍” (ancestral origin place) in the 2^nd Registration Form knowing that it was untrue. “東昇鎮” was filled in to create an impression that the plaintiff belonged to Section 3 as large parts of “東昇鎮” belong to Section 3.

30.  As the judge noted, the defendant’s case is pitched at a high threshold of establishing dishonesty on the part of the plaintiff. The standard of proof, though on a preponderance of the balance of probabilities, must be proved by more compelling evidence for more serious allegation[10]. The judge found that the evidence and the contemporaneous documents do not support such serious allegation[11].

31.  The defendant only called Mr Choi to give evidence. After Mr Choi was cross-examined, the judge found that of the four ingredients mentioned above, three were not established:

(i)  Ingredient (iii) was not proven as Mr Choi admitted he was possibly mistaken. Contrary to his original evidence that Guanlan Village is objectively within Section 2 based on his marked Map, he admitted that it could have been “橫欄” (Henglan) and not “觀欄” (Guanlan) that he saw on the old map when it was pointed out to him that the name “觀欄” first appeared in 1949. As of 2000, most people had not heard of Guanlan Village, were unclear as to which Section it belonged and no one ever suggested that Guanlan Village could possibly fall within Section 2[12]. Contrary to the defendant’s pleaded case and his witness statement that the Map was the only basis in determining a member’s Section, Mr Choi accepted that the vetting process in 2000 was based on the Table[13]. The judge found the defendant’s assertions that the plaintiff knew in 2000 that Guanlan Village fell within Section 2 incapable of being believed[14].

(ii)  Ingredient (iv) was not proven as Mr Choi accepted that it was reasonable for the plaintiff to fill in “東昇鎮觀欄鄉” (Dongsheng Town Guanlan Village) in the 2^nd Registration Form[15].

(iii)  Ingredient (i) was not made out. The defendant did not allege the plaintiff acted in any way dishonestly when he filled in the 1^st Registration Form[16]. Mr Choi agreed that the plaintiff was merely correcting an antecedent mistake of the introducer when he filled in the 2^nd Registration Form. There was no basis to say that he was seeking to move away from Section 1 due to electoral advantage[17]. Furthermore, classification of “觀欄” (Guanlan) under Section 3 in 2000 was verified by the defendant’s designated veteran directors. This was supported by the views of Mr SL Ho and Mr Chung at the board meeting on 26 July 2010. Mr Choi agreed with the views of Mr SL Ho in cross-examination[18].

32.  Mr Jason Pow, SC, who appeared for the plaintiff throughout[19], pointed out that the holdings that ingredients (i), (iii) and (iv) are not established are not challenged in this appeal, and the defendant only seeks to challenge the rejection of ingredient (ii), which alleges that the plaintiff knew in 2000 that his native place or ancestral origin place was Shaxi and that Shaxi fell within Section 2. The judge rejected this contention in ingredient (ii) having analysed the plaintiff’s witness statements and oral testimony in detail and against objective evidence and contemporaneous records[20].

33.  In respect of this finding, it is pertinent to note the following matters as pointed out by Mr Pow:

(i)  The defendant’s allegation is based solely on the plaintiff’s interview by the Zhongshan Daily in 2012 published in the Mainland Article[21], some 12 years after the relevant period of the plaintiff’s state of mind when he filled in the 2^nd Registration Form in 2000. Not only had the plaintiff (since 1994) consistently referred to “觀欄村” (Guanlan Village) as his “籍貫/祖籍” (native place/ ancestral origin place), there is no evidence of any change of the plaintiff’s state of knowledge save and except the interview published in 2012[22]. The Mainland Article was the only instance in which “沙溪聖獅” (Shaxi Shengshi) was mentioned[23].

(ii)  The reference of the plaintiff’s “祖籍” (ancestral origin place) as “中山沙溪鎮聖獅村” (Zhongshan Shaxi Town Shengshi Village) in the Mainland Article must be read in the context of how Guanlan Village was mentioned in the same article as the “家鄉” (native place) and the ties of the plaintiff with Guanlan Village.

(iii)  The judge found that as of 1996, objective evidence demonstrated that the plaintiff did regard his “籍貫/祖籍” (native place/ ancestral origin place) as “中山市坦背鎮觀欄村” (Zhongshan City Tanbei Town Guanlan Village)[24]. Mr Pow referred to the following matters. In chronological order, they are: correspondence between the plaintiff’s father and uncle in 1983; the formation of the Hong Kong Zhongshan Tanbei Clansmen Association in 1993 by the plaintiff and others; the biographical description of the plaintiff in “港澳中山人物錄” (Record of Zhongshan people in Hong Kong and Macau) published in March 1996 by the Zhongshan City Overseas Chinese Affairs Bureau in which the “祖籍” (ancestral origin place) of the plaintiff was stated as “中山市坦背鎮觀欄村” (Zhongshan City Tanbei Town Guanlan Village); the certification by Zhongshan City Dongsheng Town Lisheng Community Residents Committee on 28 January 2013 of the plaintiff’s father as an indigenous villager of “東昇鎮利生社區觀欄村觀欄二隊” (Dongsheng Town Lisheng Community Guanlan Village Guanlan Team 2)[25]; the interview of the plaintiff published in the Sino Economy or Hua Ren Jing Ji (華人經濟) in 2013 in which he gave a similar account regarding his ties with his native place.

(iv)  The judge noted one important consideration being the possible confusion arising from the Chinese concepts of “祖籍” (ancestral origin place), “籍貫” (native place) and “鄉籍” (native or village place). As borne out by the cross-examination of Mr Choi, these concepts are not as clear as one would have hoped. It is further complicated by the concepts of “what one knows as a fact” and “what one was told and simply believed in”[26]. He also identified other matters which might have caused confusion in the demarcation of Sections in the case of the plaintiff: Guanlan was not a well-known place in Zhongshan; the different demarcations of districts by various government organs over the years and the creation of new towns and villages (in some cases using ancient names of the places); the absence of clear criteria and publication of clear criteria for the demarcation of Sections adopted by the defendant[27]. These considerations are not challenged on appeal.

34.  As for the libel claim, the judge held it is not open to the defendant to argue that the Words do not bear the defamatory meanings as alleged by the plaintiff, in particular the words referring to his integrity. The defendant has put forward the Lucas-box[28] meanings of the Words and sought to justify the truth of those meanings but there is no corresponding defence of justification on the defamatory meanings as alleged by the plaintiff and found in his favour by the judge. In any event, the judge held that the Lucas-box justification must also fail by reason of his findings in the wrongful expulsion claim[29].

35.  As for the defence of qualified privilege, the judge held that the publication of the notices of the plaintiff’s expulsion in three newspapers respectively on three consecutive days was excessive and disproportionate, given the clear wordings of Article 7 (“it shall not be necessary for the Association to disclose to the members or make known to the public any reason for such expulsion”) and the real reason for the publication of the notices as shown in the minutes of the board meeting on 22 February 2013. He found that both the contents of the publication and the manner of publication far exceeded the exigency of the occasion and all these vitiated the defence of qualified privilege[30]. He also found the defence of qualified privilege vitiated by malice[31], even though it is unnecessary to consider this issue in light of his findings.

This appeal

36.  Six grounds of appeal were advanced by the defendant in the amended notice of appeal[32] and classified under eight issues in the oral submissions of Mr Wong Yan Lung, SC, who appeared for the defendant on appeal[33].

37.  Grounds 1 to 3 relate to the wrongful expulsion claim. The defendant contends that:

(i)  The judge had fallen into palpable error in finding that the plaintiff did not wilfully commit an act of gross misconduct likely to be injurious to the defendant. He was wrong in refusing to find the plaintiff knew that his native place was Shengshi Village (聖獅村) and should be classified as a member under Section 2 when the plaintiff filled out the 2^nd Registration Form in 2000.

(ii)  The judge failed to find that the defendant had undertaken due investigation and had given the plaintiff due opportunity to explain and defend himself as required under Article 7 of the AA via the board meetings held on 27 December 2012 and 29 January 2013.

38.  Grounds 4 to 6 relate to the libel claim. The defendant contends that the judge should have upheld the defence of justification. Further or alternatively, the judge erred in law and/or his analysis that the defence of qualified privilege was vitiated by (i) excessive and unnecessary publication of the notices; and (ii) malice.

39.  Mr Wong recognised that this appeal is largely against the trial judge’s findings of fact. Hence, he emphasised that “palpable errors” were made which would warrant appellate interference with a finding of primary fact. He referred this court to ZJW v SY, CACV 10/2017, 1 December 2017 at §§25 to 34, which contained a comprehensive discussion of the appellate approach to reviewing findings of fact under three categories: findings of primary fact, findings based on evaluation of facts, and findings based on inferences. He contended that the judge had misunderstood the evidence in failing to appreciate the significance of material evidence in the context of a crucial factual dispute, citing Bright Gold Ltd v Mega Well Development Ltd [2020] 4 HKLRD 26 at §48.

40.  It is pertinent to have regard to one further principle to which we drew Mr Wong’s attention. The judge found on the evidence that dishonesty on the part of the plaintiff was not established. In Central Bank of Ecuador & Ors v Conticorp SA & Ors [2015] UKPC 11 at §7, Lord Mance emphasised the need for caution when an appeal court is invited to upset the decision of a trial judge exonerating a party of a want of probity. Such a decision “should not be displaced on appeal except on the clearest grounds”, citing Akerhielm v de Mare [1959] AC 789 at 806. See also Galleria (Hong Kong) Ltd v DBS Bank [2021] HKCA 611 at §6.

Grounds 1 to 3 – wrongful expulsion claim

41.  The crucial factual dispute is the plaintiff’s state of mind when he filled in the information for “祖籍” (ancestral origin place) and “區” (Section) in the 2^nd Registration Form in 2000. The timing when he acquired the knowledge that his祖籍 (ancestral origin place) was 沙溪鎮聖獅村 (Shaxi Town Shengshi Village) and that Shaxi belongs to Section 2 (which is undisputed), is obviously material.

42.  As mentioned earlier, the minutes of the board meeting on 27 December 2012 recorded that the plaintiff gave this explanation about his “鄉籍” (native place) and the interview he gave to Zhongshan Daily in 2012:

“彭少榮繼續表示: … 就鄉籍一事，自始至終，不論是第一份入會表以至2000年的會員重新登記表，他所填的鄉籍是觀欄村，他沒有更改籍貫的名稱，曾有人問過他，你應是沙溪姓彭的，他亦多次表明以前觀欄的地界有部份屬沙溪，但至設市立鎮時，中山市以河為界，將觀欄撥入坦背屬三區，至於該篇訪問信，他說祖籍是沙溪，他並清楚說明其父親於觀欄長大，因觀欄撥入坦背，所以是三區 …

彭少榮回應: 就中山日報的訪問已寫得好清楚，至於一區或三區，上屆也曾有紀錄，… 中山日報的訪問寫明本人的父親在觀欄村長大，觀欄村在設市立鎮時，中山市以河為界，將觀欄撥入三區，由頭到尾本人都是寫上觀欄村 …”

43.  In his examination in chief, the plaintiff was questioned about the minutes set out above. His evidence was as follows[34]:

“問: 跟住你就話喇, 「曾有人問過你，『你應該係沙溪姓彭嘅。』…

問: 咁我想知喇，呢個你提及到有人曾經話畀你聽你應該係沙溪姓彭嘅呢件事。…

問: 你有冇印象係幾 -- 大約係幾時有人話畀你聽嘅呢?

答: 確實嘅時間好模糊喇，應該我估計係11年、12年嗰 -–咁上下喇，因為我係上中山嗰陣時，啲人走嚟同我講。

問: 咁同樣喇，呢個話「多次表明觀欄嘅地界有部份喺沙溪」，然後解釋話「設市立鎮嘅時候呢，就咁樣撥咗入三區。」呢個咁嘅資訊係大約幾時係理解到呢?

答: 都係嗰個時間佢哋同我講嘅，因為我一路認為沙溪、聖獅、觀欄、坦背都係喺附近，咁佢哋係咁樣講，但係嗰個好清楚咁講呢，佢話「你姓彭嘅，唔使講㗎喇，你一定係聖獅㗎喇。」咁，咁就係嗰陣時佢講嘅。

問: 喀，你有冇記憶係咩嘢人嚟㗎，講呢啲嘅說話?

答: 嗰個應該都係姓彭嘅，就佢本身--真係呢個--呢個比較模糊，比較模糊，喀。…

答: 喀，喺中山嗰度佢同我講嘅。…

官: … 有人同你講話「你係姓彭嘅，就係沙溪聖獅。」…

答: … 佢咁樣同我講嘅，因為我話--我介紹嗰陣時我話「我坦背觀欄嘅。」咁佢話「你觀欄呀? 你都係屬沙溪㗎，姓彭嗰啲喺聖獅出嚟嘅。」

官: 咁所以其實你自己嘅祖籍係邊你都唔知㗎喎，係咪?

答: 我確實唔係好清楚，即係我一路都係認住觀欄係我家鄉。

官: 因為嗰個係你爸爸喺嗰度生活，爸爸 …

答: 我阿爺喺嗰度生活, …

官: 爸爸喺嗰度出世，同埋阿爺喺嗰度生活?

答: 係喇，長大，係喇。…

官: 咁即係話你係唔係沙溪聖獅你就唔知嘅?

答: 我唔係好清楚嘅。

官: 係啲人話畀你聽 …

答: 係喇，係喇，冇錯。

官: … 你姓彭嘅，就應該係沙溪聖獅?

答: 係，係，係。”

44.  In cross-examination, the defendant’s former counsel questioned the plaintiff in this manner:

“問: … 你個說法話其實你嘅祖籍係沙溪聖獅，呢樣嘢其實你自己唔知嘅，係呢一位姓彭嘅人喺11、12年間話畀你聽嘅啫，…

問: 好喇，咁你可唔可以解 -- 你想解釋一下點解會咁講。…

答: 咁嗰個姓彭嘅鄉里同我講，「姓彭，你係喺聖獅出嚟嘅。」咁，咁喺我嘅心目中，你話係咪係囉，因為佢係喺中山，我就係喺香港出世，咁我一定唔夠佢清楚㗎。…”[35]

“問: … 咁所以我向你指出嘅嘢呢，就係話如果你 -- 按照你嘅講法，2011年你聽到有人講話原來觀欄有一部份呢，舊時係屬沙溪聖獅。…

問: 呢樣嘢應該係會令到你覺得「咦，咁我之前有個誤導個會呢，因為我猛話觀欄係三區，咁我係觀欄，所以三區，咦，但係而家有啲鄉里話我聽可能係二區喎。」咁，呢樣嘢有冇令你覺得「我可能誤導咗個會，真係要去搞清楚喇。」有冇咁樣嘅一個想法?

答: 喺11年嗰陣時人哋話即係我喺聖獅，姓彭嘅係聖獅嘅咁，但係我都講喇，我話我爸爸係喺觀欄。…

答: 咁嗰個時間我都認為觀欄屬坦背，坦背屬三區。

問: 係，但係嗱， 我哋頭先已經知道喇，去到12年12月嘅時候，你就已經識得講呢，就係話觀欄有部份係曾經試過喺沙溪，去到設市立鎮嘅時候呢，先至撥入坦背三區嘛。…

答: 冇錯，冇錯，我講係「部份土地」吖嘛。

問: 係喇，但係你唔知嗰部份土地係咪你阿爸喺嗰度吖嘛。

答: 我都唔知喎。”[36]

45.  In an attempt to discredit the plaintiff’s evidence, the defendant’s former trial counsel relied heavily on the fact that the details that came out in the above testimony (that the plaintiff had a conversation with one Mr Pang in 2011 or 2012 in a visit to Zhongshan and was told that since his family name is Pang, he should come from Shengshi and belong to Shaxi) were not mentioned in the plaintiff’s pleadings or witness statements and submitted that the additional details must be recent fabrication[37]. The judge rejected this contention.

46.  Mr Wong submitted that the judge made a palpable error in rejecting the contention of recent fabrication. His argument was along these lines:

(i)  He repeated the submission of the former counsel that this evidence only came out on Day 2 of the trial.

(ii)  The judge misunderstood the minutes of the board meeting on 27 December 2012 regarding the plaintiff’s explanation on being challenged by Mr KS Lam. The judge found that the minutes recorded that the plaintiff explained “he was once told” that he should be “沙溪姓彭的” (Pangs from Shaxi) and [was told] that “in the past, “觀欄” (Guanlan) fell within the boundary of “沙溪聖獅” (Shaxi Shengshi)”[38]. The judge made three palpable errors in the above findings[39].

(iii)  The first error is that the minutes actually stated that someone had “asked” the plaintiff if he should be one of the Pangs from Shaxi (“曾有人問過他，你應是沙溪姓彭的”). The character “問” (ask) would suggest that the plaintiff was questioned in a challenging sense (質問) that he should have originated from the Pangs of Shaxi, which challenge the plaintiff did not appear to accept. The judge erroneously found that the plaintiff was “told” by someone in an advisory sense he should have originated from the Pangs of Shaxi, and which the plaintiff accepted to be correct[40]. The judge was wrongly influenced by the plaintiff’s oral evidence elicited by leading questions in his examination in chief as set out above and had conflated the minutes with the oral testimony. At the board meeting, it was not recorded that the plaintiff ever said that his knowledge of his “祖籍” (ancestral origin place) had changed because of something that he was told.

(iv)  The second error is that the minutes did not record that the plaintiff “was told” in the past “觀欄” (Guanlan) fell within the boundary of “沙溪聖獅” (Shaxi Shengshi). The judge was wrongly influenced by the plaintiff’s oral testimony quoted above. According to the minutes, the relationship between Guanlan and Shaxi was not part of the plaintiff’s conversation with Mr Pang in 2011 or 2012, but was what the plaintiff said he had repeatedly asserted.

(v)  The third error is that the minutes recorded the plaintiff asserted that a part of the boundary of Guanlan belonged to Shaxi (“他亦多次表明以前觀欄的地界有部份屬沙溪”). The judge however read the minutes to mean that Guanlan historically fell within the boundary of Shaxi. He found that to mean when the plaintiff mentioned “沙溪” at the meeting, the plaintiff was “obviously referring to the historical “沙溪” in which part of “觀欄” (Guanlan) once fell within”[41].

(vi)  The alleged conversation in 2011 or 2012 bears all the hallmarks of recent fabrication. It was vague and lacking in particulars, such as the full name of Mr Pang. In light of the defendant’s allegation in the defence that the plaintiff knew his native place was Shaxi when he filled in the 2^nd Registration Form in 2000, the alleged conversation in 2011 or 2012 should be the first thing the plaintiff would tell his lawyers.

(vii)  The judge failed to consider it is inherently improbable that the plaintiff would only be told by some stranger in 2011 or 2012 that the Pangs were from Shaxi and that the plaintiff would readily rely on this bare assertion to tell Zhongshan Daily his “祖籍” (ancestral origin place) was “中山沙溪鎮聖獅村” (Zhongshan Shaxi Town Shengshi Village). Matters of the ancestral origin place are normally what senior members within one’s family would have told their descendants, and the plaintiff was already in his 40s in 2000. He knew that Shaxi was in Section 2 and made a considered declaration when he filled in the 2^nd Registration Form in 2000 to change from Section 1 to Section 3 in stating his “祖籍” (ancestral origin place) as “東昇鎮觀欄鄉” (Dongsheng Town Guanlan Village). He alleged that he only researched into the historical relationship between Shengshi and Guanlan after the litigation.

(viii)  The judge erred in taking into account an irrelevant matter, namely, that Mr Choi was not sure by 2000 the plaintiff already knew that his “祖籍” (ancestral origin place) was Shaxi Town Shengshi Village[42]. Mr Choi was just one of the 60 odd directors. The judge erroneously relied on Mr Choi’s admission he had no solid evidence to back his speculations to find there is no evidence to prove that in 2000, the plaintiff deliberately sought to move from Section 1 to Section 3 with the motive of deriving electoral advantages[43]. What was relevant was the plaintiff’s knowledge and state of mind based on the objective evidence, not Mr Choi’s personal views.

(ix)  The objective evidence referred to which the judge failed to take into account is the Mainland Article which was available to the defendant when the Expulsion Resolution was passed in January 2013. In it, the plaintiff clearly stated his ancestral origin place was Zhongshan Shaxi Town Shengshi Village (祖籍中山沙溪鎮聖獅村). Although the interview to Zhongshan Daily was in 2012, the judge should infer from the Mainland Article that was the plaintiff’s knowledge of his ancestral origin place at all material times, including in 2000 when he filled in the 2^nd Registration Form. The judge should not have overturned the Expulsion Resolution.

47.  Another matter relied on by the defendant’s former counsel to support the contention that the plaintiff’s oral testimony on his state of mind in filling the 2^nd Registration Form was a recent fabrication related to the fact that the plaintiff had not mentioned in his pleadings and witness statements his conversation with Mr CH Li when the latter showed the Table to him before the meeting of the Election Committee on 18 April 2000[44]. The plaintiff said in his evidence in chief that Mr CH Li told him at the time since the plaintiff came from Tanbei which belonged to Section 3, he should fill in Section 3 as his “祖籍” (ancestral origin place) in the 2^nd Registration Form[45]. The judge rejected the contention of recent fabrication.

48.  Mr Wong submitted that the judge made palpable error in rejecting there was recent fabrication in these respects:

(i)  He repeated the submissions of the former counsel this evidence only emerged on Day 2 of the trial.

(ii)  In accepting the plaintiff’s evidence in this respect, the judge found in the oral testimony, the plaintiff “confirmed that he had read the Table before filling in the information in the 2^nd Registration Form. Hence, whether the Plaintiff had the relevant conversation with Mr CH Li does not add very much to his case”[46]. The judge was plainly wrong here as the plaintiff had repeatedly said in his oral evidence that he did not read the contents of the Table but was relying solely on the representation of Mr CH Li in filling Section 3 in the 2^nd Registration Form[47]. This is a departure from the plaintiff’s case in his pleadings[48] and witness statement[49] where he stated that in filling in Section 3 in the form, he relied on the Table and as per the Table “坦背” (Tanbei) was part of Section 3.

(iii)  The judge erroneously treated the plaintiff’s change of the date of the alleged conversation with Mr CH Li (from 31 May 2000 to 18 April 2000)[50] as immaterial[51]. The plaintiff’s oral evidence is that he relied solely on what Mr CH Li told him because Mr CH Li was appointed by the defendant to be the responsible Election Committee member for Section 3[52]. This is incredible as Mr CH Li was only so appointed (together with Mr HJ Ho) at the meeting on 31 May 2000[53].

49.  Mr Wong submitted that if the court rejects the plaintiff’s evidence on the alleged conversation with one Mr Pang in 2011/2012 and his alleged conversation with Mr CH Li in 2000 as recent fabrication, adverse inference should be drawn from the plaintiff’s lies. The court should find on the defendant’s case that the plaintiff knew his “祖籍” (ancestral origin place) was “沙溪鎮聖獅村” (Shaxi Town Shengshi Village) and that he knew Shaxi belonged to Section 2 when he put down “三區東昇鎮觀欄鄉” (Section 3 Dongsheng Town Guanlan Village) in the 2^nd Registration Form.

50.  Further, he submitted that the judge erred in failing to find the plaintiff did so to gain electoral advantage and had failed to consider relevant objective evidence:

(i)  the significance of which Section a member belongs to in the 9 Sections of Zhongshan under the defendant’s proportional representation system and the history of vote-rigging in the election of directors of the defendant;

(ii)  the inference that should be drawn that the plaintiff wanted to be elected as a director in the re-election in 2000 when the 2^nd Registration Form was filled out, from the fact that the plaintiff was appointed as a director in 2001 and later as the secretary general by the then chairman Mr Lee Tung Hoi when no re-election was held;

(iii)  the close connection of the plaintiff with members of influence in Section 3, such as Mr CH Li and Mr SL Ho and that in 2000 the plaintiff was already at odds with members in Section 2 such as Mr KS Lam.

51.  Mr Wong argued that the judge should have regard to the objective evidence as mentioned and he erred in rejecting the defendant’s case on motive by referring to Mr Choi’s acceptance it was only his speculation the plaintiff sought to gain electoral advantages[54]. The personal view of Mr Choi is irrelevant.

52.  We are not persuaded by Mr Wong that the judge had fallen into palpable errors in refusing to find that the plaintiff knew his native place was Shengshi Village and that he should be classified as belonging to Section 2 when he filled out the 2^nd Registration Form in 2000. The arguments of recent fabrication had been raised before the judge and thoroughly considered. He was entitled to form the view that the plaintiff had provided the gist of his explanation (albeit not in detail) at the board meetings on 27 December 2012 and 29 January 2013, and correctly noted that this has been pleaded in the statement of claim[55].

53.  Nor do we think the judge had misread the minutes of the meeting on 27 December 2012 in a material manner when he stated in the Judgment that the minutes recorded the plaintiff said he was “told” he should be “沙溪姓彭的” (Pangs from Shaxi) and was “told about his clan’s origin and the historical boundaries of Guanlan and Shengshi”[56]. The minutes were not a verbatim record. As rightly submitted by Mr Pow, to fairly understand the record, one should take into account the casualness and inaccuracies of colloquial Cantonese expressions. It would not be right to read too much into the character “問” (ask) in the minutes as necessarily denoting “質問” (questioning in a challenging sense). In the words of the English Court of Appeal in R (Moos) v Commissioner of Police of the Metropolis [2012] EWCA Civ 12 at §71[57], an appeal court should be slow to latch onto what may be no more than linguistic imperfection or infelicity of expression to undermine an otherwise impeccable judgment. Whether the plaintiff was “asked” as recorded in the minutes (“曾有人問過他”) or whether he was “told” as related in greater detail in his oral testimony can hardly feature as a material difference.

54.  It is also pertinent to note that in the plaintiff’s examination-in-chief on the minutes, his cross-examination, and the questions put to him by the judge in this regard, the questions as quoted in the above extracts (“你提及到有人曾經話畀你聽你應該係沙溪姓彭嘅”; “大約係幾時有人話畀你聽嘅呢”; “呢個咁嘅資訊係大約幾時係理解到呢”; “你有冇記憶係咩嘢人嚟㗎，講呢啲嘅說話”; “有人同你講話「你係姓彭嘅，就係沙溪聖獅。」”; “係啲人話畀你聽”; “你個說法話其實你嘅祖籍係沙溪聖獅，… 係呢一位姓彭嘅人喺11、12年間話畀你聽嘅啫”; “按照你嘅講法，2011年你聽到有人講話原來觀欄有一部份呢，舊時係屬沙溪聖獅”) all proceeded on the basis the plaintiff was “told” that he should have originated from the Pangs clan of Shaxi and that in the past, part of Guanlan fell within the boundary of Shaxi Shengshi. It appeared to be the common understanding of all the questioners that the plaintiff was told by Mr Pang of the information and the plaintiff did not disagree with that when he gave evidence in answer. No one had suggested to the plaintiff that, as recorded in the minutes, he was just being asked and not told in an advisory sense. The point raised in the amended notice of appeal and pursued vigorously by Mr Wong was simply not taken at the trial.

55.  We are inclined to agree with Mr Pow what probably happened in 2011/2012 was that the plaintiff was asked about his “籍貫/祖籍/鄉籍” (native place/ancestral origin place) and was told that he should originate from the Pangs of Shaxi, and that was effectively his oral testimony. The record in the minutes is consistent with and corroborative of the plaintiff’s testimony. It was not explored at the trial the extent to which the minutes were a complete or reasonably complete record.

56.  Further details emerged from the plaintiff’s testimony of his conversation with Mr Pang that were not recorded in the minutes. The minutes recorded the plaintiff had said someone had asked him, he should have originated from the Pangs of Shaxi and he had repeatedly asserted that in the past part of Guanlan fell within the boundary of Shaxi (曾有人問過他，你應是沙溪姓彭的，他亦多次表明以前觀欄的地界有部份屬沙溪). It is pertinent to note that he was cross-examined on the basis that he was told by Mr Pang in 2011 that historically, a part of Guanlan was within Shaxi Shengshi (2011年你聽到有人講話原來觀欄有一部份呢，舊時係屬沙溪聖獅). In answer to this, the plaintiff asserted that his father was from Guanlan and at the time he considered that Guanlan belonged to Tanbei.

57.  Hence, according to the further details in the plaintiff’s testimony, the relationship between Guanlan and Shaxi was part of the plaintiff’s conversation with Mr Pang. There is ambiguity in the minutes whether the plaintiff’s repeated assertion that in the past part of Guanlan fell within the boundary of Shaxi was made to Mr Pang or to others on other occasions. This was not clarified at the trial. No point was taken the minutes did not record that the plaintiff was told by Mr Pang in the past Guanlan fell within the boundary of Shaxi. He was cross-examined on the contrary basis. We consider the point made by Mr Wong for the first time in oral submissions regarding the second error a bad one.

58.  As for the third error regarding the proper reading of the minutes, this is again a point not gone into at the trial. We do not agree with Mr Wong the judge is plainly wrong in understanding that when the plaintiff mentioned Shaxi at the meeting in December 2012, he was referring to the historical Shaxi which part of Guanlan once fell within.

59.  Mr Wong sought to re-run arguments rejected by the judge. The judge had considered them and given detailed reasons why he refused to find the plaintiff knew as of 2000 that his “祖籍” (ancestral origin place) was “沙溪聖獅” (Shaxi Shengshi) instead of “觀欄” (Guanlan) and that Guanlan was under Section 2[58]. He cannot be said to be plainly wrong in accepting as the truth the plaintiff’s explanation he genuinely believed that his native place is Guanlan, and that he belonged to Section 3 by reason of the connection of Guanlan with “坦背” (Tanbei). The judge correctly noted that despite being told about the origin of the Pangs clan from Shaxi Shengshi, up to now the plaintiff is not sure whether it was indeed the case[59].

60.  We do not agree the judge had taken into account an irrelevant matter as regards Mr Choi’s evidence in that Mr Choi was not sure by 2000 the plaintiff already knew his ancestral origin place was Shengshi. This evidence (coming from the only witness of fact called by the defendant) showed how flimsy the defendant’s evidence was in attempting to prove that the plaintiff had such knowledge in 2000, and hence clearly inadequate in proving that the plaintiff had acted dishonestly in filling in the information about his native place and Section in the 2^nd Registration Form.

61.  As to the objective evidence relied on by Mr Wong, it is plainly impermissible to infer from the Mainland Article (based on the plaintiff’s interview in 2012) the plaintiff’s knowledge and state of mind in 2000 regarding his ancestral origin place and the Section that he should belong. To the contrary, as mentioned earlier, objective evidence found by the judge demonstrated that as of 1996, the plaintiff did regard his “籍貫/祖籍” (native place/ ancestral origin place) as “中山市坦背鎮觀欄村” (Zhongshan City Tanbei Town Guanlan Village). Other evidence Mr Wong said to be objective and prayed in aid to support the contention as to the plaintiff’s motive in gaining electoral advantage does not advance the defendant’s case.

62.  Mr Pow properly conceded that the judge was mistaken in finding that the plaintiff had testified he had read the Table before filling in the information in the 2^nd Registration Form. We do not think this is an error sufficiently material to undermine the judge’s overall assessment of the plaintiff’s credibility. The representation of Mr CH Li (which the plaintiff said he relied on in his oral testimony in filling in the 2^nd Registration Form) was no different from the information gleaned from the Table (which the plaintiff said he relied on in filling in the Section number as pleaded in the Reply and mentioned in his witness statement). Furthermore, Mr Choi accepted that the veteran directors responsible for vetting the registration of members in Section 3, Mr CH Li and Mr HJ Ho, must have used the Table principally as the assessment tool in determining a member’s Section, and that the Table was a valid basis and bound to be used for this purpose[60]. It is pertinent to note that Mr Choi agreed, even up to 2010, no one attending the board meetings in which the 1^st accusation against the plaintiff was debated could say definitively whether Gualan Village should be classified as Section 1 or 3 and no one had ever suggested that Guanlan Village could possibly fall under Section 2[61].

63.  The change of the date of the alleged conversation with Mr CH Li from 31 May 2000 to 18 April 2000 was raised before the judge. He considered there seemed to be some confusion as to the date and one cannot expect the plaintiff to recall all the minute details of events which happened many years ago[62]. He is entitled to regard the change as immaterial.

64.  As submitted by Mr Pow, three of the four ingredients of the defendant’s case of dishonesty were not established and these holdings are not challenged on appeal. The minor mistake of the judge mentioned above could have no significance to the rejection of the defendant’s case of dishonesty. The appeal court should not disturb the judge’s finding exonerating the plaintiff of dishonesty and substitute a finding of dishonesty except on the clearest grounds.

65.  As regards the other points raised by Mr Wong in relation to the plaintiff’s conversation with Mr CH Li in 2000, he was seeking to re-run arguments considered and rejected by the judge. We do not think it would avail the defendant to repeat those submissions as they are not valid grounds for appellate intervention.

66.  We do not agree with Mr Wong’s contention the court should infer that the plaintiff filled in the 2^nd Registration Form in the way he did because he wanted to be elected as a director in the re-election in 2000. Quite apart from the fact that such inference is contrary to the judge’s finding there was no basis to say that the plaintiff was seeking to move away from Section 1 due to electoral advantage[63], we do not consider any of the matters urged upon this court by Mr Wong are sufficiently cogent for such an inference to be drawn.

67.  It is not a fair reading of the Judgment to say that the judge simply rejected the defendant’s case on sinister motive of the plaintiff in 2000 to gain electoral advantage based on Mr Choi’s acceptance in cross-examination it was only his speculation with no solid evidence to back this up[64]. This was but one of the reasons. As we have discussed earlier, the judge had multiple reasons for rejecting the defendant’s case.

68.  Mr Wong also contended that the judge should have found that the defendant met the requirement in Article 7 of the AA in that there was “due investigation” into the offence and “satisfactory evidence” was obtained. He argued that it should be borne in mind that the defendant was not a judicial or investigative body and so long as the investigation and evidence had provided a reasonable basis for the directors to exercise their power, the requirement in Article 7 should be regarded as met.

69.  In light of our conclusion there is no basis to impugn the primary findings of fact the plaintiff had not wilfully committed an act of gross misconduct likely to be injurious to the defendant, it is not necessary to deal with the arguments on “due investigation” and “satisfactory evidence”. In any event, we share the judge’s doubts whether the directors involved in the voting process had properly understood the nature of the charge or accusation against the plaintiff and whether they had been directed to focus on the plaintiff’s state of mind when he put down “Section 3” in the 2^nd Registration Form[65].

70.  For all the above reasons, the grounds of appeal raised in respect of the wrongful expulsion claim must fail.

Grounds 4 to 6 – libel claim

(i) Justification

71.  As we have upheld the finding that the plaintiff had not wilfully committed an act of gross misconduct likely to be injurious to the defendant, the defence of justification must fail. It is not necessary to discuss whether the defendant should be allowed at the appeal stage to amend its pleading, if so required, to plead justification in relation to the defamatory meaning of the Words alleged by the plaintiff.

(ii) Qualified privilege – excessive and unnecessary publication

72.  It is the defendant’s case that the publication of the notices in newspapers were the only possible and effectual mode of communication of the fact and reasons for the plaintiff’s expulsion to all its members[66].

73.  In deciding this issue, the judge considered these relevant factors: (i) the nature of the occasion said to give rise to the privilege; (ii) the means of the publication chosen; (iii) the reason why such means of publication was adopted; and (iv) whether in the circumstances it was reasonably necessary and proportionate to adopt that manner of publication[67]. There is no suggestion that the judge erred in the identification of the relevant factors. It is well established that publication must be proportionate to the necessity of the occasion and does not go wider than is required for the effective making of the communication in the ordinary course of business[68].

74.  The judge’s decision on this issue is a finding based on evaluation of facts. This involved an assessment of reasonableness and a balancing exercise of proportionality. He assessed a number of different factors which have to be weighed against each other and this is often a matter of degree upon which different judges can legitimately differ. This may be regarded as closely analogous to the exercise of a discretion and appellate courts would approach an appeal against a finding based on evaluation of facts in a similar way (ZJW v SJ at §33, quoting Assicurazioni Generali SpA v Arab Insurance Group (BSC) [2003] 1 WLR 577 at §16).

75.  Mr Wong submitted that the judge was wrong to hold that the publication of the notices in three newspapers respectively on three consecutive days was excessive and disproportionate. His arguments may be summarised as follows:

(i)  He cited Otuo v Watch Tower Bible and Tract Society of Britain [2019] EWHC 1349(QB) at §154 for the contention that reciprocal duties and interest did exist in this instance to justify the defendant’s communication to its members the plaintiff’s expulsion and the reason thereof. This was to alert members to stop associating with the plaintiff, particularly as he was a prominent member and had sent letters to the defendant by his solicitors claiming that his expulsion was invalid. This was further justified as some of the defendant’s objects are associated with charitable cause. The objects include: to establish and maintain non-profit schools; to establish funds for granting aid in connection with education of members’ children and grand-children; to establish and maintain low-cost clinics, dispensaries, maternity homes, nurseries and homes for the aged; to devise ways and means for applying any of its profits, funds or assets to any charitable cause.

(ii)  Publication in a newspaper was the only possible and effectual mode of communication to all the defendant’s members including the 560 members who could not be contacted by their correspondence address, citing Hewitt v Grunwald [2004] EWHC 2959 (QB) at §§72 to 74. It should be noted that it was the defendant’s practice to publish notices of annual general meetings and other matters of importance in newspapers. Article 19 of the AA provides that service of notice of general meeting to members may be made in any manner stated thereunder including “by advertisement inserted in two Chinese newspapers published in Hong Kong”.

(iii)  As for the holding there were other means of bringing to the attention of members the plaintiff’s expulsion such as by posting a notice in the defendant’s premises[69], there is no evidential basis to assume that members would go to the defendant’s premises, and this suggestion was not pleaded by the plaintiff or raised in the cross-examination of Mr Choi.

(iv)  The views of Mr KS Lam on the reason for notifying the public of the plaintiff’s expulsion[70] are irrelevant. He was just one of the 64 directors who passed the resolution to publish the notice in newspapers.

(v)  It cannot be right that dormant members who did not update their correspondence address could be ignored, as the judge had apparently thought[71].

76.  We do not agree with Mr Wong’s submissions.

77.  Otuo v Watch Tower Bible and Tract Society of Britain was cited to the judge. The case involved a religious context. The question there was whether the elders in the congregation had a legitimate religious and moral interest and duty to inform members of the congregation and other interested parties of their decision to disfellowship an unrepentant wrongdoer and faithful members had a reciprocal legitimate religious and moral interest to be informed of the decision to alert them to stop associating with that person. Otuo is clearly distinguishable. Article 7 of the AA sets a default position that “it shall not be necessary for the Association to disclose to members or make known to the public any reason for such expulsion”.

78.  A central issue concerning the defence of qualified privilege in Otuo was whether this defence was defeated by reason of some procedural irregularity or impropriety of such gravity as to undermine the validity of the conclusions arrived at, so that the publishers and publishees did not have the reciprocal duties and interests relied on. The defence was upheld as it was held (at §154) there was no procedural irregularity or impropriety of such gravity to undermine the validity of the decision that the claimant should be disfellowshipped. In this instance, as we have upheld the judge’s declaration that the Expulsion Resolution is invalid, reciprocal duties and interests did not arise as they would be vitiated by procedural irregularity or impropriety.

79.  It is irrelevant that Article 19 provides for the publication of notice of general meeting to members by advertisement in newspapers. Nor is it material that part of the objects of the defendant are related to charitable cause.

80.  The defendant’s justification for publishing to the public at large the reason of the plaintiff’s expulsion had been analysed by the judge. Based on the minutes of the board meeting on 22 February 2013, the judge found that the alleged reason to notify members of the fact and reason of the expulsion was not the true reason for publishing to the public, but that the publication was made in response to the letter sent to the defendant by the plaintiff’s solicitors. He found that the use of newspaper publications had nothing to do with some 560 members not contactable through correspondence[72]. We see no reason to interfere with this primary finding of fact.

81.  Since the avowed reason for publishing to the public was not to inform members of the fact and reason of the expulsion, as found by the judge, it is not strictly relevant to consider whether publication in newspapers was the only possible and effectual mode of communication to all the members.

82.  As for the suggestion that it would be an effectual mode of publishing the notice by prominent posting in the defendant’s premises, this was raised by Mr Pow in his opening and closing submissions at the trial and the judge had mentioned this as part of the plaintiff’s contention[73]. No pleading objection was taken before the judge by the defendant’s previous legal team. No complaint was made about the lack of pleading in the amended notice of appeal. We do not think there was unfairness to the defendant in the circumstances. The judge was entitled to find that posting such a notice in the defendant’s premises could have brought the expulsion notice to the attention of members when they attended the premises and that there was no urgency in bringing this to members’ attention[74]. He also had regard to the absurdity of the defendant’s conduct in publishing the fact and reason of the expulsion revealed in Mr Choi’s cross-examination[75].

83.  The views of Mr KS Lam cannot be regarded as irrelevant. He was the chairman and regarded as “the highest leader”[76]. He played a leading role in orchestrating the plaintiff’s expulsion. The contents of the draft notice were dictated by him without reference to the board. The board allowed him a free hand and it was only after publication of the notices in newspapers that the board passed a resolution on 27 March 2013 reaffirming the publication of the notices[77].

84.  In any event, if the main reason for publishing the notices in newspapers was to notify members of the plaintiff’s expulsion, there was no justification for not stating this simple fact alone and no reason to include the accusation of questionable integrity and breach of the AA in the notices[78].

85.  There is no sufficient basis to interfere with the judge’s finding based on his evaluation of facts that the publication in three respective newspapers for three consecutive days was excessive and disproportionate in that both the contents and the manner of publication far exceeded the exigency of the occasion. The defence of qualified privilege must fail on this ground alone.

(iii) Qualified privilege: malice

86.  Mr Wong contended that since the decision to publish the notices in newspapers was a collective decision of the board, it is not right to attribute the alleged malice of Mr KS Lam to the defendant[79]. He submitted that the judge erred in holding that malice of Mr KS Lam should be attributed to the defendant for these reasons:

(i)  It has not been pleaded that Mr KS Lam’s dictation of the notices is the basis of attribution in the particulars of malice in §§17(A)(34) and (35) of the reply.

(ii)  The contents of the notices were approved and ratified by the board at the meeting on 27 March 2013. Effective ratification is equivalent to antecedent authority and has retrospective effect.

(iii)  The notices only repeated the wordings of the Expulsion Resolution and the Expulsion Notice to the plaintiff, which included the reason for expulsion and the accusation of questionable integrity. There is no evidential basis to find that in repeating such wordings in the newspaper publications, Mr KS Lam did so to humiliate the plaintiff and was malicious[80]. It is possible that Mr KS Lam simply copied the words previously used without giving conscious thought to them.

87.  As we have upheld the judge there was excessive and disproportionate publication and qualified privilege is not available, it is not necessary to consider whether this defence should also be vitiated by malice.

88.  In any event, we do not think the judge was in error and will just deal with Mr Wong’s arguments succinctly.

89.  The pleading objection was raised below and was rejected by the judge[81]. It did not feature in the amended notice of appeal although it was mentioned in Mr Wong’s skeleton argument. It is correct that the paragraphs in the reply identified by Mr Wong did not plead specifically that the dictation of the contents of the notices by Mr KS Lam is the basis of the attribution of malice. What was pleaded at §17(A)(35) was that “without seeking the opinion/resolution of the Board of Directors, and in the absence of justifiable reason, some directors of the Defendant determined maliciously to publish the Words in newspapers” and at §17(B) that Mr TK Li and Mr KS Lam, who had been instrumental to the motions in 2012 and 2013, held personal ill-spite against the plaintiff. The plaintiff did not know at the time who drafted the Expulsion Notice and the notice published in the newspapers. It was only in Mr Choi’s testimony that Mr KS Lam was identified as the one who decided on the contents of the notices. We agree with the judge that the pleading in the reply should entitle the plaintiff to run the case of attributing malice of Mr KS Lam to the defendant. We do not think the pleading is deficient or that the defendant was prejudiced on account of any deficiency.

90.  We agree with Mr Pow that Mr Wong would appear to have conflated the concepts of attribution of knowledge/intention with ratification of authority. The judge has correctly relied on the relevant principles for attribution in §§123 and 124 of the Judgment.

91.  As for the remaining argument that the notices published in the newspapers merely repeated the wording of the Expulsion Resolution, this was raised before the judge and rightly rejected for the reasons in §127 of the Judgment.

Conclusion and costs

92.  For the above reasons, we dismiss the defendant’s appeal. Having heard submissions on costs, we order the defendant to pay the plaintiff’s costs of the appeal with a certificate for two counsel.